Fair Use vs. Corporate Greed

I should be hiking Sanitas, instead of ruminating on journalism’s narrow escape from a legal ruling on fair use as it applies to the Web. But because I’m a J School grad student who’s learning digital news practices, I’m composing a new blog instead … (violins will play here when I learn how to upload audio to my blog).

On Monday, GateHouse Media and the New York Times Co. settled out of court rather than have a judge rule in their copyright infringement case. GateHouse had charged NYT with infringing on original content published on the Web as part of GateHouse’s “Wicked Local” sites, and scraped by the NYT’s competing Boston.com site. Since scraping is the basis for all aggregators, the outcome of this suit was a nail-biter for the big players in the aggregation business, particularly Yahoo and Google, Huffington Post, Politico, and the like.

But aggregators aren’t competing with original material sites — in fact, it might be argued that aggregators help the sites they link to by bringing them users who might not otherwise visit. In this case, however, Boston.com competes directly with “Wicked Local.” In fact, that was the crux of the complaint—that by scraping “Wicked Local” headlines, Boston.com was competing with “Wicked Local” by using WL’s own material.

A former Bostonian, I remember the days when the precursors to “Wicked Local” were several locally produced, 12-page weeklies that reported on town meetings and school district doings for the small suburbs that surround Boston. Over the years, these were bought out by larger companies that bought more local weeklies, etc., and eventually were bought by Liberty Media, which is now GateHouse Media.

Some complicating factors: it’s not clear that “Wicked Local” didn’t get traffic from Boston.com’s links to the originating site; and it’s really puzzling that GateHouse didn’t install software that precludes aggregators from scraping, as many sites do to protect just this sort of “poaching.” In fact, that’s one of the remedies that the agreement they struck stipulates. GateHouse will install software to bar their material from aggregators, and NYT will honor that barrier.

Probably both sides in this dispute saw that a legal ruling could severely cramp money making for everyone concerned, which is why they came to an agreement the day they were due in court. For now, aggregators can continue with business as usual— combing the Web for news and posting the headlines and first sentences of each original story, along with a link to its source, on their aggregation site. And the media conglomerates can wring more money from their Web businesses by pushing the limits of ethical journalistic practice.

So is it journalism that benefited here, or Big Business? Can we even separate the two?

My antidote for today’s exposure to the greed that infects our industry is a self-prescribed walk in the sunshine.